OSHAWA COURT FILE NO.: CV-20- 00001077 DATE: January 2, 2024

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

William James Peraziana, Trustee of the Estate of William Parker, Plaintiff – and – Carol Ann Savage, Defendant

Counsel: Anthony O’Brien, for the Plaintiff Carol Savage, Unrepresented

Heard: November 22 – 24, 2023

REASONS FOR DECISION

I. OVERVIEW

[1] This is an estate litigation dispute between the Estate of William Ronald Parker (“the Estate” and/or “Mr. Parker”) and his former common law spouse Carol Ann Savage (“Ms. Savage”), regarding the severance of a joint tenancy registration to a home purchased by Mr. Parker in 1987, located at 481 Broadgreen Street, Pickering, Ontario (“the Broadgreen home”).

II. FACTS

[2] The deceased, William Parker, also known as William Peraziana, (“Mr. Parker”), was born on September 27, 1931, and died on July 28, 2019, at 86 years of age.

[3] Mr. Parker enjoyed a long and well-loved life.

[4] Prior to meeting Ms. Savage, Mr. Parker was employed as the Vice President of a large elevator company and became part owner of an elevator company. He was married and divorced twice. He had three children including a son who followed him into the elevator business. Mr. Parker was financially independent and owned his own 42’ sailboat, and his own home, mortgage free.

[5] Mr. Parker’s first marriage was to Elizabeth with whom he shared his three children: Shelly, James (“Jim”), and Karen.

[6] Following Mr. Parker’s divorce from Elizabeth, he maintained a close relationship with Elizabeth, their three children, and Elizabeth’s (second) husband.

[7] Mr. Parker’s second marriage was to Iris. Mr. Parker and Iris shared no children together. Mr. Parker and Iris divorced in or about 1986.

[8] On August 14, 1987, Mr. Parker purchased the Broadgreen home. Mr. Parker was the sole registered owner and did not require a mortgage on the purchase of the property.

[9] The Broadgreen home was located close to the home of Mr. Parker’s eldest daughter, Shelly, her husband, and four children, who lived down the street from her father. The home was also located close to Karen’s home and his first wife (and friend) Elizabeth and her husband’s home.

[10] Initially, Mr. Parker resided at the Broadgreen home alone. Sometime in or about 1989, Mr. Parker’s daughter Karen came to live with him. Karen testified that she moved in with her father as she didn’t want him to live alone. Mr. Parker and Karen lived alone in the Broadgreen home for approximately one year.

[11] Also, in or about 1989, Mr. Parker met Ms. Savage, who was approximately 16 years younger, at his yacht club. Mr. Parker began seeing Ms. Savage regularly.

[12] In 1990, Mr. Parker placed a mortgage on the Broadgreen property with Canada Trustco in the approximate amount of $167,000 and Ms. Savage moved into Mr. Parker’s Broadgreen home together with her young adult daughter, Sherry Savage (“Sherry”), and Sherry’s (then) boyfriend.

[13] Shortly following Ms. Savage and her family’s move into the Broadgreen home, Karen moved out and down the street.

[14] Once settled in the Broadgreen home, Ms. Savage began a garment company called Victoria Anne Heirlooms, that designed and manufactured women’s cotton nightwear. Mr. Parker advised his daughter Shelly that he contributed $300,000.00 towards Ms. Savage’s company which she ran solely out of the Broadgreen home.

[15] Ms. Savage testified that Victoria Anne Heirlooms was registered solely in her name as she, “ran the company and did all the work”.

[16] Ms. Savage testified that she spent each weekend travelling to craft shows around Ontario while Mr. Parker (who was retired) spent his time on his boat, his daughter Shelly’s home, or the flea market where he kept a stall and bought and sold various items and acted as a handyman.

[17] Ms. Savage testified that Victoria Anne Heirlooms was her source of income and that she employed sewers who manufactured the garments at the Broadgreen home. Ms. Savage testified that she also employed and paid her daughter Sherry to work for the company. Ms. Savage stated that while she was initially compliant with paying the company’s business taxes - over time the company fell into tax arrears due to “all the expenses of life”.

[18] Ms. Savage testified that she abandoned Victoria Anne Heirlooms in or about 2010 for health reasons.

[19] Ms. Savage’s daughter, Sherry, testified that she moved with her mother to the Broadgreen home in 1990, the same year she finished high school and continues to live in the home today. Sherry denied that her boyfriend moved into the home and instead insisted that he “stayed” at the home a lot. Sherry did not attend post-secondary education and after high school began working for her mother at Victoria Anne Heirlooms, out of the Broadgreen home, where she worked for approximately 15 years.

[20] Sherry has never paid rent for her occupation at the Broadgreen home and testified that instead she helped around the home with cleaning and “caring” for her grandmother and Mr. Parker. Following questioning by Ms. Savage, Sherry agreed that doctors, nurses, and personal support workers attended at the home to care for her grandmother, and that it was the personal support workers who made meals for both her grandmother and Mr. Parker, not her.

[21] The evidence established that after Ms. Savage and her family moved to the Broadgreen home, Mr. Parker’s children stopped visiting their father inside the home. Karen stated that she sensed her father was embarrassed as the home had a “foul, foul, smell of cat urine”. Shelly and Jim cited similar reasons for not entering the home both noting that their father seemed embarrassed by the state of the home, and they did not wish to make him uncomfortable. Jim stated that he did not wish to, “press” the issue and would pick his father up and take him to breakfast or to his sister Shelly’s for a visit. He visited with his father outside the home three to four times per year and would otherwise speak to his father by telephone.

[22] The uncontroverted evidence of Mr. Parker’s children clearly established that despite not entering the Broadgreen home after Ms. Savage and her family commenced cohabitation (excepting on July 27, 2019, detailed later), Mr. Parker’s children continued to share a close and loving relationship with their father and continued to see him on a regular basis outside of the home. During cross-examination, Ms. Savage agreed with this sentiment and testified that Mr. Parker spent a lot of time with his daughters, “loved his kids”, and “wished” that Jim was able to spend more time with him.

[23] In 2005, the Canada Trustco mortgage registered in 1990 against the Broadgreen home was replaced with a MCAP Service Corporation Mortgage.

[24] On May 11, 2007, Mr. Parker transferred title to the Broadgreen home from his sole name into joint title with Ms. Savage. At that same time Mr. Parker replaced the existing mortgage with a CIBC mortgage in the amount of $293,514.74.

[25] Ms. Savage provided evidence at discovery that was read into the record that when she was placed on title as a joint owner, Mr. Parker received no legal advice, and she made no payment and gave no consideration to Mr. Parker in exchange for her interest in the property.

[26] At trial, Ms. Savage testified that when the CIBC mortgage was registered, she and Mr. Parker spoke to the “broker” and provided the broker with their “common law agreement”. When queried why Ms. Savage had never prior to that moment mentioned or produced a “common law agreement”, Ms. Savage stated that she “produced it to her lawyers”. For the record, I note that neither Ms. Savage nor her lawyers ever produced a “common law” or “cohabitation” agreement between Mr. Parker and Ms. Savage to the Estate or to the court.

[27] In or about July 2007, Ms. Savage, and her company Victoria Anne Heirlooms, were assessed by the Minister of Finance as owing $24,418.57 on account of retail sales tax, as evidenced by the HST Demands addressed to Ms. Savage by the Ministry of Finance, filed as Exhibit 11 at trial.

[28] On February 7, 2008, the Minister of Finance registered a tax lien on the property as against Carol Savage and Victoria Anne Heirlooms for retail sales tax indebtedness of $24,881.47 plus interest at 7% per year compounding daily.

[29] At trial, (again, for the first time ever), Ms. Savage produced three cheques executed by Mr. Parker on a TD Canada Trust bank account titled “Peraziana Designs. Victoria Anne” dated respectively August 25, 1998 (payable to Ajax Animal Hospital), October 20, 1998 (payable to Wm. Parker), and October 22, 1998 (payable to Shelly). Ms. Savage argued that these cheques prove that Peraziana Designs and Victoria Anne Heirlooms were connected companies and as such Mr. Parker and hence his Estate are equally responsible for payment of the retail sales tax owed by Ms. Savage and Victoria Anne Heirlooms.

[30] With respect to Ms. Savage’s submission that Mr. Parker’s 1998 cheques prove that Mr. Parker is jointly liable for Ms. Savage and Victoria Anne Heirlooms’ retail sales tax debt - I disagree and reject this submission. First, Ms. Savage testified that Victoria Anne Heirlooms was registered solely in her name. Second, the 1998 cheques do not establish ownership of any of Peraziana Designs, Victoria Anne, or Victoria Anne Heirlooms; further and better evidence would be required in this regard. Third, and most importantly, the HST demands were specifically directed to Carol A. Savage and Victorian Anne Heirlooms and the registration of the tax lien at page two specifically stated “whereas Carol Savage is indebted to the Minister of Revenue for taxes and other amounts owing under the Act in the amount of $24,881.47 as at February 5, 2008, together with all amounts for which the taxpayer afterwards becomes liable while this notice remains registered, including interest” and notes that Carol Savage, “has an interest in the lands by virtue of being one of the joint tenants with William Ronald Parker the other joint tenant”. Had Mr. Parker been liable for the debt to the Minister of Revenue, the HST Demands, and the Lien Document would have noted that Mr. Parker was jointly liable for the debt.

[31] In or about 2010, Ms. Savage’s mother began experiencing health issues and Ms. Savage abandoned her business while retaining the inventory and garment making equipment at the Broadgreen home.

[32] Also, in or about 2010, Ms. Savage’s mother and the entirety of her mother’s home and personal belongings moved into the Broadgreen home where she remained living until her death, which occurred sometime prior to 2017.

[33] In or about 2014, Mr. Parker was involved in an accident at the flea market when a garage door fell on him. He was badly bruised and stayed at Shelly’s home for a week so that he could be cared for during his illness. While Mr. Parker was at Shelly’s home, he noticed that she was engaged in drying and weaving milk bags together to make mattresses for charity. Mr. Parker became focused on this task and began volunteering his time for the charity weaving mattresses out of milk bags. Mr. Parker’s daughter Shelly testified that he “loved” making the mattresses for charity and continued volunteering faithfully weaving mattresses for the remainder of his lifetime.

[34] Sometime following 2014, Mr. Parker ceased driving due to vision issues. Mr. Parker’s daughters Karen and Shelly drove Mr. Parker wherever he needed to go. They transported him several times weekly to go shopping, to the bank, to the doctor, to the pharmacy, to pick up his milk bags weekly, for visits to their home and for outings. Jim also continued to pick up his father for visits outside the home three to four times per year and otherwise spoke to him by telephone.

[35] In 2016, the flea market closed, and Mr. Parker, who was a very social person, lost many of his social connections and no longer worked outside the home. Mr. Parker continued weaving mattresses for charity from the seclusion of his bedroom and continued to socialize with his children outside the home.

[36] Karen testified that she picked her father up each Monday to retrieve milk bags for weaving. Karen would spend several hours each Monday with her father outside the Broadgreen home, attending to errands, talking, discussing their lives, and enjoying each other’s company.

[37] Shelly testified that she picked her father up each Tuesday to take her father to the church “to do his bag thing”, to the bank, to the grocery store, and to the pharmacy. Shelly stated that when her father would attend his bank, he was not able to access any money as despite his pensions being deposited monthly, there was never any money in his account. Mr. Parker advised Shelly that he never had any money in his account because Ms. Savage had access to it and was paying all the bills from his account (which facts were verified through Ms. Savage’s testimony and a review of the bank statements found at Exhibit 10).

[38] The Scotiabank statements for Mr. Parker introduced as trial Exhibit 10, verified that payment of the expenses relating to the Broadgreen home were automatically withdrawn and paid from Mr. Parker’s sole account from his pension proceeds.

[39] A review of the bank statements (Exhibit 10) and Ms. Savage’s own testimony also confirmed that Ms. Savage was accessing Mr. Parker’s bank accounts and after payment of bills and transfers to (unknown) accounts, persons, and credit cards, at the end of each month, Mr. Parker had little to no money remaining in his bank account.

[40] As Mr. Parker could not access money from his bank account, Shelly stopped taking him to the bank and instead gave him money from her own account to buy his groceries. Shelly stated that her father purchased fresh fruit, pre-made salads, vegetables, cheese, crackers, and candy – things he could keep and eat in his room. Sherry confirmed that Mr. Parker kept his groceries in his room and ate in his room by himself (in the company of his parrots). Shelly also testified that her father told her (unprompted) that he gave Ms. Savage $300,000 for her business which was never repaid. Shelly said that she knew the financial information provided to her by her father was true as he, “wouldn’t lie to her”. Shelly said that her father was a proud man and very stubborn.

[41] Shelly stated that the weekly routine of driving her father continued for many years. Shelly never noticed any decline in her father’s mental capacity and testified that aside from his poor eyesight, he had no memory problems, and was completely fine to her. Shelly said that when her father passed away it was a “complete shock”.

[42] In addition to the Monday and Tuesday visits, the evidence established that Mr. Parker regularly attended at Shelly’s house to visit with the family, including his ex-wife Elizabeth and her husband, who moved in with Shelly for a time when they were ill and needed care. Ms. Savage did not participate in these visits.

[43] In May 2017, on a Tuesday, while Shelly was driving Mr. Parker to his various errands, Mr. Parker said to her, “you guys do a lot for me” and then told her that he would like to change his Will to leave his kids something. He said that the problem was that he, “had no money” for a lawyer. Shelly testified that she told her father that she could help him with that as could Jimmy. At Mr. Parker’s request, Shelly called Jim (who she refers to as Jimmy) and told him, “Dad wants to change his Will, but he doesn’t have any money”. Jim agreed to help and got in touch with their father. Shelly testified that she was not involved any further and did not meet with or speak to the lawyer. However, after her father had seen the lawyer and changed his Will, he told Shelly that he was being “brow-beaten” by Ms. Savage. Shelly testified that she told him that it was, “his house and his decision”.

[44] Jim testified that in 2017 his sister Shelly contacted him to advise that their father wanted to leave something to the family and wondered if Jim would help. Jim then met with his father and his father told him what he wanted to do – which was leave ½ of the house to his children. Jim stated that he knew a lawyer that practiced down the street from his father named Murray Stroud. Arrangements were made for Mr. Parker to meet with Mr. Stroud. Jim picked up his father on the day of the scheduled appointment (June 1, 2017) and Mr. Parker provided instructions to Mr. Stroud that he wished to make a Will leaving ½ of his Broadgreen home to his children equally. Mr. Stroud requested that Jim leave the room (which he did) and Mr. Stroud continued his meeting with Mr. Parker in private. During his meeting with Mr. Stroud, Mr. Parker signed an Authorization and Direction that directed registration of a “Transfer to Sever Joint Tenancy” to the Broadgreen home. When Mr. Stroud and Mr. Parker finished, Jim was requested to bring his father back the next day to execute his Will.

[45] On June 2, 2017, Jim picked up his father and Mr. Parker attended at Mr. Stroud’s office and executed his Will in the presence of Mr. Stroud and his assistant. The duly executed Last Will and Testament of Mr. Parker dated June 2, 2017, was introduced as Exhibit 3.

[46] After the Will was executed, Jim returned his father to the Broadgreen home. Following execution of his Will, Mr. Parker advised Jim that he, “was under a lot of pressure – there was a lot of screaming – trying to change matters” by Ms. Savage. However, Mr. Parker did not wish to change his Will and never requested that Jim take him back to Mr. Stroud’s office.

[47] Karen testified that she became aware that her father had changed his Will after June 2017. Karen stated that she was not aware of the terms of the Will, she was not involved in the making of the Will, did not discuss it with her father, and did not have any interactions with Ms. Savage regarding the Will. Karen stated that Jim advised that their father had chosen Shelly to be his power of attorney for health care and Jim to look after everything else.

[48] With respect to her knowledge of Mr. Parker’s Will, Ms. Savage testified that Mr. Parker was 16 years older than her and when they first met, he had a responsible job. Ms. Savage claimed that approximately 1 ½ years after she had been with Mr. Parker, he told her that he had “made a Will” that provided if she (Ms. Savage) passed away her daughter, Sherry, would not get any part of the house as it would go to him and if he died first, she (Ms. Savage) would get the house. It is noteworthy that there is no record of any prior Will being executed by Mr. Parker nor was any prior Will produced to the court or noted to exist by any other witness. However, the disposition of the home as described by Ms. Savage does reflect the legal effect of Mr. Parker transferring the Broadgreen home into joint tenancy with Ms. Savage - which in fact did occur on May 11, 2007.

[49] Ms. Savage testified that in June 2017, “when this Will thing happened the second time” that Mr. Parker came home late from coffee with Jim on June 2, 2017, and told her that they went to “Jimmy’s lawyer”. Mr. Parker advised Ms. Savage that, “Jimmy had to do some changes on his mother’s Will, and I thought I would do mine at the same time”. Ms. Savage said that she began questioning him as to what would happen – would he live with Jimmy? – Karen? – Shelly? – what about the parrots? Would Shelly take the parrots? Ms. Savage said that she felt that Mr. Parker didn’t understand what he did and needed counsel. Ms. Savage stated that she did not think that the Will had language that Mr. Parker would understand. She stated that it did not seem probable or rational.

[50] Ms. Savage repeatedly questioning Mr. Parker about his Will and his reasons for changing the Will to provide for his children. Ms. Savage then began surreptitiously recording her conversations with Mr. Parker concerning the instructions and drafting of his Will. Although Ms. Savage testified that she had many recordings but only produced four recordings of her questioning of Mr. Parker and his responses. The four recordings produced by Ms. Savage were played and introduced at trial by the Estate as Trial Exhibits 2a to 2d, and were noted as being recorded on June 17, 2017, June 18, 2017, and two recordings on March 24, 2018.

[51] The surreptitious audio recordings made by Ms. Savage of her conversations with Mr. Parker are quite telling and absolutely devastating to Ms. Savage’s claims of incapacity and undue influence.

[52] The first audio recording dated June 17, 2017 (Exhibit 2a) captures Mr. Parker’s expressed reasons for severing the joint tenancy and gifting his ½ interest in the home to his three children quite logically and succinctly. Mr. Parker clearly states as follows, “All my debts are paid out of my share. I got thinking about there must be something left for my children.” In response to this statement, Ms. Savage began questioning as to the name of the lawyer that Mr. Parker attended – and he advised that he did not remember – and Ms. Savage stated that that raises concern.

[53] The second audio recording dated June 18, 2017, captures Mr. Parker advising Ms. Savage that he has, “an obligation to my children”. Ms. Savage then questions Mr. Parker, “what about your obligation to me”. Mr. Parker attempts to respond and Ms. Savage interrupts him and continues to berate him asking, “did you think if anything happens to you, I would have to move real quick” – to which Mr. Parker responds, “I don’t think I’m going to die tomorrow”. Ms. Savage asks, “Did you think about the money…did you think that no one could make decisions without Jimmy” to which Mr. Parker responds, “yes”. Mr. Parker attempts to explain and that he did think about it and states, “I am not senile”. Ms. Savage says, “it’s your health and not your mind” in response. Ms. Savage accuses Mr. Parker of “sneaking around” and then berates Mr. Parker stating, “no one would live with you for 25 years – no one would do that”. Ms. Savage turns the conversation to question whether Jim (who is Mr. Parker’s executor) would be fair and suggests Mr. Parker should appoint an independent person. Mr. Parker remains resolute in his decision.

[54] Following the second recording (but no doubt after many further conversations regarding ownership of the home) on June 27, 2017, a transfer/deed was registered severing the joint tenancy between Mr. Parker and Ms. Savage such that the title reflected the terms of the June 2, 2017 Will and the property was duly registered in favour of William Ronald Parker and Carol Savage as tenants in common each as to a 50% undivided interest.

[55] The third audio recording dated March 24, 2018, captures a conversation about the Broadgreen home. In this recording Mr. Parker is advising Ms. Savage that he wants a contractor to walk through the house to determine its value. Mr. Parker suggests that will assess what needs to be done to the home to achieve the best price for the home. Mr. Parker notes, “I know it is embarrassing – your mother passed away and her things are everywhere – even in my room”. Mr. Parker suggests that they prepare a complete list of their indebtedness – hers and his – and that they the contractor to get the most money for the home for each of their ½ interests. Mr. Parker pleads with Ms. Savage not to let the $60,000, “that you owe the town…get to the point that they lien the house”. Mr. Parker notes that they had money issues and advises Ms. Savage that his son Jimmy gives him $1,000 every year and Shelly also gives him money so he can survive. Ms. Savage responds angrily and asks, “Why did you do this without talking to me – I pay your indebtedness – I don’t talk about yours – you don’t care – why did you do the Will without talking to me”. Mr. Parker responds, “I didn’t go behind your back. Jimmy is my son and so is Karen and Shelly”. Ms. Savage continues to argue with Mr. Parker and the recording ends.

[56] The fourth audio recording dated March 24, 2018, captures another conversation between Mr. Parker and Ms. Savage about the house and the Will. Mr. Parker reiterates that no person will want the house in its current condition. He suggests that a contractor will see the house for its real value. Mr. Parker notes that, “Jimmy wants an answer from me, and I want to work out the money”. Mr. Parker urges Ms. Savage that the contractor will, “look beyond the mess” and that the same contractor, “will buy the house”. When Ms. Savage asks where Mr. Parker will live – he advises that he plans to move in with his daughter Shelly. Ms. Savage tells Mr. Parker that Shelly’s house is full, and he needs to, “plan these things”. By way of a taunt, Ms. Savage suggests that Mr. Parker should, “ask Jimmy if you can go and live with him”.

[57] During the audio recordings, bird sounds can be heard in the background indicating that the recordings were made in Mr. Parker’s room, which is consistent with the evidence that Mr. Parker spent his later years when at his home, secluded in his bedroom.

[58] On July 27, 2019, Ms. Savage contacted Mr. Parker’s daughter, Shelly, and told her that, “something was wrong” with her father.

[59] Shelly testified that she arrived within four minutes of the call and found her dad upstairs, incoherent, covered in blood, with a “busted intestine”. Shelly said that Ms. Savage placed Mr. Parker in the hallway as she didn’t want anyone to see the condition of his room which was excessively hot and filthy, with evidence of rats, garbage, rotting food, soiled bed linens and clothing, all in his bedroom (in addition to his three parrots).

[60] Shelly’s husband called 911 and Mr. Parker was taken to the hospital in an ambulance.

[61] Although Mr. Parker seemed to improve and was provided with medication for his pain, he did not survive, and died the following day on July 28, 2019.

[62] On February 5, 2020, Jim, as Estate Trustee obtained a Certificate of Appointment of Estate Trustee with a Will dated June 2, 2017, for Mr. Parker’s Estate.

[63] Jim reached out to Ms. Savage to attempt to resolve the estate administration issues without success.

[64] On June 16, 2020, Jim, as Estate Trustee with a Will for Mr. Parker’s Estate, commenced the within claim, seeking inter alia, an order directing partition and sale of the property and a priority claim relating to Ms. Savage’s retail sales tax liability.

[65] On August 7, 2020, Ms. Savage filed her Statement of Claim and Counterclaim, seeking inter alia, lack of capacity, undue influence, and unjust enrichment.

[66] Jim testified that following commencement of the litigation, it was agreed between the parties that the Estate would not seek occupation rent and Ms. Savage would pay the ongoing expenses related to the home, including the taxes, utilities, and mortgage.

[67] In March of 2023, Jim became aware that despite their agreement, Ms. Savage did not make payments towards the CIBC Mortgage and CIBC had paid the taxes owing to the City of Pickering and had commenced a Notice of Sale dated November 21, 2022, that had never been served upon the Estate or disclosed to the Estate Trustee.

[68] On March 31, 2023, Jim obtained a pay-out statement from counsel for CIBC that sought payments of $299,390.16.

[69] On April 18, 2023, Jim, through a numbered company owned by him, paid out the mortgage and obtained a transfer of the charge, to ensure that the home would not be sold by power of sale.

[70] The assets of Mr. Parker’s Estate are limited to his equity in the ½ interest in the Broadgreen home, subject to the mortgage and other outstanding estate debts.

III. ISSUES

[71] Although numerous issues were raised by the pleadings, the parties limited their argument at trial to following issues:

a. Was the transfer deed registered on June 27, 2017, as instrument number DR1609657, which severed the joint tenancy registration between Mr. Parker and Ms. Savage valid? i. Did the registration of the transfer deed from Mr. Parker to Mr. Parker sever the joint tenancy? ii. Did Mr. Parker have capacity on June 1, 2017, to execute the Authorization and Direction, that directed registration of the transfer deed on June 27, 2017? iii. Did Mr. Parker have knowledge and approval of Authorization and Direction that directed registration of the transfer deed to sever the joint tenancy? iv. Was Mr. Parker unduly influenced on June 1, 2017, in executing the Authorization and Direction, that directed the registration of the transfer deed severing the joint tenancy? b. Was the Estate unjustly enriched to the corresponding detriment of Ms. Savage? c. Is Ms. Savage solely responsible for payment of the amount owing to discharge the retail sales tax lien registered against the property? d. Is the Estate entitled to an Order for vacant possession and directing the partition and sale of the Broadgreen home? If so, on what terms?

IV. THE LAW AND ANALYSIS

Severance of the Joint Tenancy

[72] Justice MacLeod-Beliveau in Thompson v. Elliott Estate, 2020 ONSC 1004, 150 OR (3d) 625, succinctly summarized the law with respect to severing joint tenancies at paras. 48 – 51 as follows:

[48] There is no issue that a person can unilaterally sever a joint tenancy upon the execution of a transfer in land. It has been held that it must however be done before the person dies and cannot be done in a will or testamentary disposition, as by then, it is too late. The right of survivorship in those circumstances has already vested the property in the surviving tenant (see Royal and Sun Alliance Insurance Company v. Muir, 2011 ONSC 2273 at para 25, Perell, J).

[49] The Ontario Court of Appeal has reviewed the common law in this area and has held in Hansen Estate v. Hansen, 2012 ONCA 112, at paras 32, 34, that there are three ways for someone to sever a joint tenancy during their lifetime:

1. By an act of any one of the persons interested operating on his or her own share;
2. By mutual agreement; and
3. Any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.

[50] It is the first way of severing a joint tenancy that is relevant and at issue in this case. A joint tenancy can be severed by transferring an interest jointly held with another from oneself to oneself. The property is then considered to be held as tenants in common with the former co-tenant. The joint tenancy is considered effectively destroyed. (see section 42 of the Conveyancing and Law of Property Act, R.S.O. 1990, c. C. 34; Murdoch v. Barry, 10 O.R. (2d) 626 at paras. 19, 22, Goodman J. (Ontario S.C.))

[51] The law in Ontario, I find, is settled and clear in that it is the delivery, and not the actual registration of the deed/transfer that determines if a joint tenancy has been severed. Whether or not a joint tenancy has been severed is a question of fact based on the evidence. (See Re McKee and National Trust Co. Ltd. et al (1975), 7 O.R. (2d) 614 (C.A.), at p. 616). The onus is on the party seeking to establish the severance. In a disputed situation, the issues that are related to the ability to register a transfer severing a joint tenancy in the Land Titles system, and to provide notice to third parties, are secondary issues to be dealt with only after the ownership interest in land has been determined based on the evidence surrounding the execution of the transfer of severance.

[73] In the present case, the onus is on the Estate to establish the severance, including the fact that the transfer deed was valid, and properly registered.

[74] Like Elliott Estate, Mr. Parker severed the joint tenancy, “by an act of any one of the persons interested operating on his or her own share” by transferring his interest jointly held with Ms. Savage from himself to himself.

[75] However, unlike Elliott Estate, the transfer deed was registered two years prior to Mr. Parker’s death. Proof of registration was made by the Estate through introduction as Exhibit 9 at trial, a certified copy of the abstract of title for the Broadgreen home which records thereon that on June 27, 2017, a transfer deed was duly registered as instrument DR1609657 from Mr. Parker to Mr. Parker.

[76] It is not necessary to go behind the registration to determine whether the document was duly executed. The transfer deed was accepted for registration by the Land Titles Registrar and upon registration the transfer effectively severed the joint tenancy causing the property thereafter to be held as tenants in common with the former co-tenant, Ms. Savage. (See section 42 of the Conveyancing and Law of Property Act, R.S.O. 1990, c. C. 34; Murdoch v. Barry (1975), 10 O.R. (2d) 626 at paras. 19 and 22).

[77] In all the circumstances, I find that the registration of the transfer deed on June 27, 2017, as instrument number DR1609657, was sufficient to sever the joint tenancy.

Validity of the Severance Document

[78] Having determined that the transfer deed as registered was a valid method of severing the joint tenancy, the next question to be determined is whether the June 1, 2017, Authorization and Direction as executed by Mr. Parker directing the severance of the joint tenancy should be declared invalid due to lack of capacity, lack of knowledge and approval, and/or undue influence.

[79] The applicable legal test is the same test applied relating to the validity of a testamentary document, with necessary modifications.

[80] There is a presumption of knowledge and approval, and testamentary capacity, when the conditions of due execution of a testamentary document have been met under ss. 3 and 4 of the Succession Law Reform Act, R.S.O. 1990, c S.26 (“SLRA”).

[81] In the present case, the Authorization and Direction is not required to be executed in the same manner as a testamentary document. As such, proof of due execution in accordance with ss. 3 and 4 of the SLRA is not applicable. However, the Estate is still required to prove that Mr. Parker executed a document in writing directing registration of the transfer deed severing the property. This fact is proven through production of the June 1, 2017, Authorization and Direction to Sever the Joint Tenancy, which document was executed by Mr. Parker and witnessed by Mr. Stroud on June 1, 2017, which formed part of the lawyer’s productions.

[82] As the preconditions of due execution are met, there is a presumption of knowledge, approval, and testamentary capacity. However, these presumptions are displaced if a party challenging the validity of the document demonstrates circumstances which raise a suspicion that the document does not express the mind and will of the testator (or in this case the transferor): see Stewart v. Stewart, 2021 ONSC 1222; Vout v. Hay, [1995] 2 SCR 876; and Re Bailey (1974), 4 OR (2d) 315.

[83] The existence of suspicious circumstances does not impose a higher burden of proof on the propounder of the document than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion: see Vout at para. 24.

[84] The Supreme Court in Vout identified three categories of suspicious circumstances, which are applicable, with necessary adjustments, to my considerations in the present case involving the validity of the Authorization and Direction to Sever the Joint Tenancy:

1. Suspicious circumstances surrounding the preparation of the document;
2. Suspicious circumstances calling into question the testator’s capacity; and
3. Suspicious circumstances tending to show that the transferor’s free will was compromised by coercion or fraud (referred to as “undue influence”).

[85] In the present case, Ms. Savage alleged that suspicious circumstances arose with respect to all three categories. Where suspicious circumstances are present, the presumption is spent and the propounder of the will (or in this case Authorization and Direction) reassumes the legal burden of proving capacity, and knowledge and approval.

Undue Influence and Fraud

[86] The burden of proof with respect to undue influence and fraud, however, remains with those challenging the Will (or in this case the Authorization and Direction).

[87] To succeed in setting a document aside for undue influence, the challenging party must establish, on the balance of probabilities, that the influence imposed by some other person on the deceased was so great and overpowering that the document reflects the will of the former and not that of the deceased. In other words, to be unduly influenced is to be coerced. In such a case, the Will (or in this case the Authorization and Direction) does not represent the wishes of the maker and is not effective: see Stewart at para. 59; Banton v. Banton (1998), 164 DLR (4th) 176.

[88] A party’s physical and mental condition may render them more susceptible to coercion. The question is whether the influencing party took advantage of the weakness and

[89] successfully imposed their will on the testator: see Banton at para. 65 and Stewart at para. 61.

[90] It is not enough to simply prove that the party was vulnerable to undue influence. The evidence must show that coercion was actually exerted on the party executing the document to change their will: see Stewart at para. 61 and Duschl v. Duschl Estate, [2008] O.J. No. 1422 at para. 111.

[91] With respect to the issue of fraud, although pleaded by Ms. Savage, there was no evidence of fraud and no argument presented to the court regarding the fraud issue, and as such the issue of fraud in this proceeding, is considered abandoned.

Capacity and Knowledge and Approval

[92] As noted by Justice Turnbull in Stewart, at para. 62, in 2017 the Ontario Court of Appeal restated the test for testamentary capacity in the case of Stekar v. Wilcox, 2017 ONCA 1010, 32 E.T.R. (4th) 199, at para. 14, as follows:

The test for testamentary capacity has been well-established since the Supreme Court of Canada, in Skinner v. Farquharson (1902), 32 S.C.R. 58 (S.C.C.), adopted the formulation of the test offered in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.), at p. 565:

It is essential to the exercise of such a power [of testamentary capacity] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

[93] The Banks test to prove testamentary capacity is high and the onus falls on the propounder of the Will (or in this case the Authorization and Direction): see e.g. Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.) at para. 15, per Charron J.A. (as she then was).

[94] The first and second criteria of the Banks test requires that the testator understand (1) the nature of the act of making a will and (2) the extent of their property.

[95] The Supreme Court of Canada held in Leger v. Poirier, [1944] S.C.R. 152, at pp. 161– 162, that these criteria require more than the testator’s mere ability to provide “rational responses” to simple questions, or to repeat “a tutored formula of simple terms”. Writing for the majority, Rand J. held that a “sound and disposing mind” that can comprehend the act of making a will, the extent of one’s property, and those who might have a rightful claim upon the estate of the testator is required. In other words, as Charron J.A. explained at para. 15 of Hall, “The jurisprudence abounds with statements that it is not sufficient simply to show that a testator had the capacity to communicate his or her testamentary wishes. Those wishes must be shown to be the product of a sound and disposing mind”.

[96] The third criterion of the Banks test requires that the testator comprehend and appreciate the claims to which they ought to give effect. Boyd J. clarified in Murphy v. Lamphier, [1914] O.J. No. 32 at para. 129, that this component requires not only that the testator knew who they were including in their will, but also that the testator was able to remember and appreciate who they were excluding, so as to exercise judgment with regard to why they were doing so: see also Hall at para. 17. When there is a change in the will-making pattern – particularly a marked departure from previous dispositions – the testator should show awareness that their new will revokes their previous will, recognise the differences between the old will and the new will, and be able to explain the rationale for the changes. As Evans J.A. put it at para. 17 of Schwartz v. Schwartz, [1970] 2 OR 61, aff’d, , [1972] S.C.R. 150, “Whenever there is a marked departure from a previously existing pattern in the disposition by a testator of his estate, one seeks to ascertain from the circumstances the reason for such change.”

[97] The fourth criterion requires, generally, that mental impairment does not “poison” the testator’s affections to bring about a disposition that would not have been made otherwise.

[98] It is in the light of all these principles that one must consider the evidence relating to a testator’s capacity: see Hall at para. 27.

[99] Furthermore, given that no expert evidence of capacity was adduced during the trial of the present case, it is important to recall that the question of testamentary capacity is a practical one, that so far as evidence based on observations is concerned, may be answered by laypersons of good sense as well as doctors: see Dujardin v. Dujardin, 2018 ONCA 597, 423 DLR (4th) 731, at para. 33.

Determination of Capacity, and Knowledge and Approval, and Undue Influence

[100] In the present case, each of Jim, Shelly, and Karen provided consistent evidence as to Mr. Parker’s capacity in June 2017 and following. All of Mr. Parker’s children testified that aside from vision issues, Mr. Parker was fully capable and had a sharp wit. He was active and mobile and engaged each of them in meaningful conversations.

[101] The children also provided testimony that Mr. Parker intended to sever the joint tenancy so that he could leave his ½ interest in the Broadgreen home to them by his Will. Mr. Parker specifically told Shelly and Jim that he wanted to leave his ½ interest in the Broadgreen home to his three children. He requested their assistance so that his testamentary wishes would be honoured. As for Mr. Parker’s knowledge of his assets and liabilities, Shelly and Jim provided evidence that Mr. Parker was aware of his income (received by pensions) and expenses but was unable to control the flow of his money as Ms. Savage had assumed control of his bank account. Further, there was ample evidence that Mr. Parker was fully aware of his assets and liabilities and intended to gift his ½ interest in the property to his children which evidence was provided by Mr. Parker through the surreptitious audio recordings.

[102] Ms. Savage also provided evidence that Mr. Parker had capacity in June 2017 to authorize the severance of the joint tenancy. Ms. Savage agreed that he had a sharp wit but questioned his “physical state”. Notwithstanding this suggestion, no evidence was lead that would lead me to conclude that Mr. Parker’s physical state in June 2017 affected his capacity, his ability to understand his assets and liabilities, and/or the effect of the Authorization and Direction to Sever the Joint Tenancy.

[103] In fact, the evidence provided by Ms. Savage, through her testimony and the surreptitious audio recordings of her discussions with Mr. Parker concerning the severance of the joint tenancy and execution of the Will provided valuable evidence of the following:

a. Mr. Parker was fully aware of the terms of his Will and was fully aware that he severed the joint tenancy registration of his home to provide that ½ of the Broadgreen home would pass to his children. b. Mr. Parker was fully aware of the state of his finances, debts, liabilities, and assets. c. Mr. Parker was fully aware that Ms. Savage was utilizing his assets to pay not only his debts and liabilities but her own. Mr. Parker did not take steps to curtail Ms. Savage’s spending or access to his pension benefits (income) but did take steps to protect his interest in his sole remaining asset (the Broadgreen home) for the benefit of himself and his children. d. Mr. Parker fully intended to sever the joint tenancy to provide a ½ interest in his Broadgreen home to his children. e. Mr. Parker fully intended that his son Jim would act as his Estate Trustee. f. Mr. Parker advised Ms. Savage about the terms of his Will at the time of execution of the Will. g. Ms. Savage attempted on numerous occasions over a sustained period to have Mr. Parker amend his Will and ensure that she received the whole of the Broadgreen property and Mr. Parker repeatedly and adamantly refused to amend the terms of his Will or return the property to a joint tenancy.

[104] As is apparent from listening to the audio tapes in their entirety, Mr. Parker was fully cognizant. He was repeatedly forced to engage in discussions with Ms. Savage about: the terms of his Will, his assets and liabilities, the state of the home, his duties and obligations owed to Ms. Savage, his duties and obligations owed to his children, and his overriding desire to provide a gift of his ½ interest in the Broadgreen home to his children.

[105] The audio recordings produced by Ms. Savage provide cogent, timely, and contemporaneous evidence of Mr. Parker’s capacity to make a Will and to sever the joint tenancy to the Broadgreen home and the effect of influence, if any, on his decision-making process.

[106] Mr. Parker took no steps to amend his Will or to amend or vary the registration to the Broadgreen home despite Ms. Savage’s persistent and adamant objections to the severance of the joint tenancy.

[107] The testimony of Mr. Parker’s children and Ms. Savage is that Mr. Parker’s daily routines remained the same to his death. His daughters picked him up, provided him with groceries, and took him on outings and to their homes. Mr. Parker continued to weave mattresses for charity inside his bedroom where he spent his time in the company of his parrots. Mr. Parker continued to store his food and eat in his bedroom. Despite his poor eyesight and some hearing loss, Mr. Parker remained having a “sharp wit” and “no memory problems”; he was “mobile”, “active”, and “engaged”.

[108] Despite any allegations contained in Ms. Savage’s pleadings, the testimony of the children and of Ms. Savage herself confirmed that Mr. Parker shared a close and loving relationship with his children, did not suffer any estrangement prior to or following his relationship with Ms. Savage, and was capable and competent to the date of his death.

[109] The evidence provided by the audio recordings when considered with the testimony of the witnesses, including that provided by Ms. Savage, leaves no doubt that Mr. Parker was fully capable and competent when he executed the Authorization and Direction on June 1, 2017, his Will dated June 2, 2017, and when the joint tenancy was severed upon registration of the deed on June 27, 2017, and was not unduly influenced in the making of his Will or in the registration of the severance deed by any party.

[110] For the foregoing reasons, I find that:

1. Mr. Parker had sufficient capacity to execute the Authorization and Direction on June 1, 2017, that directed the registration of the transfer deed registered on June 27, 2017.
2. Mr. Parker had sufficient knowledge and approved of the Authorization and Direction on June 1, 2017, that directed the registration of the transfer deed registered on June 27, 2017.
3. Mr. Parker was not unduly influenced in the execution of the Authorization and Direction on June 1, 2017, that directed the registration of the transfer deed registered on June 27, 2017.

[111] With respect to the issue of ownership of furniture or items of personal use remaining in the home, including pets, Ms. Savage inferred that Mr. Parker was a “hoarder” who would bring home, “stray cats from the flea market”.

[112] Although the hoarding issue (items of personality and pets) is no longer relevant as the Estate withdrew any claim for damages due to waste, I specifically reject the evidence of Ms. Savage that Mr. Parker was primarily responsible for the hoarding issues, including the hoarding of furniture and cats, for the following reasons:

a. Prior to Ms. Savage’s cohabitation, there is no evidence that Mr. Parker had an issue with hoarding or had any cats in his home. b. The evidence established that Mr. Parker had three parrots that he kept in his bedroom safe from the cats (who were not allowed in his bedroom). On the surreptitious audio recording in response to Mr. Parker’s statement that he would move to Shelly’s home Ms. Savage asked him if Shelly would “take his parrots” and made no mention of any cats. c. On the surreptitious audio recordings Mr. Parker noted that Ms. Savage’s mother’s belongings were, “everywhere, even in my room” and Ms. Savage does not respond to blame Mr. Parker for the excess of items in the home. d. Ms. Savage’s daughter, Sherry, testified that Mr. Parker’s “stuff” was in “his room and the garage”. e. From approximately 2014 onwards, Karen drove Mr. Parker to the flea market and testified that she never brought cats home in the car nor did they have cats with them when they visited Shelly’s home after returning from the flea market. f. The October 2023 videotape of the Broadgreen home, (taken following Mr. Parker’s death), showed items of personal use filling each room videotaped on the first floor (dining room, living room) which items all appear to be related to Ms. Savage’s former business, Victoria Anne Heirlooms. The video also showed numerous cats sleeping on Ms. Savage’s bed and elsewhere in Ms. Savage’s bedroom. g. The October 2023 videotape of the Broadgreen home showed numerous cats, cat beds, cat houses, cat statutes, cat nick naks, and a closet converted to a kitty litter room in Sherry Savage’s living area and bedroom located in the basement in the home. h. When I enquired for the purpose of disposition of assets how the cats and birds should be distributed, Ms. Savage advised that she (together with her daughter) intended to keep all the cats – and that there was no need to transfer Mr. Parker’s parrots as they had died following his death.

Determination of the Claim of Unjust Enrichment

[113] Despite Ms. Savage’s claims that the Estate has been unjustly enriched by her contributions, no credible evidence was presented that Ms. Savage provided care, services, or benefit to Mr. Parker, that could be considered “unjust enrichment”. Instead, the evidence established that Ms. Savage made little contributions to Mr. Parker’s care, expenses, or well-being. There was no evidence submitted that Ms. Savage cooked, cleaned, or cared for Mr. Savage. To the contrary, the evidence established that Mr. Parker lived almost entirely in his own room, he kept his food and personal items in his own room, he bathed himself, and his expeditions outside of his home were with his children, not Ms. Savage.

[114] During her testimony, Ms. Savage’s daughter, Sherry, made a comment that she “cleaned” Mr. Parker’s room and “cared” for him. Based on the whole of the evidence introduced at trial, I find that this statement greatly exaggerates any assistance Sherry may have provided to Mr. Parker. The evidence established that Mr. Parker had little interaction with the other occupants of his home. There was no evidence of any communal living provided nor was there any evidence that anyone other than Mr. Parker or his children assisted him with his activities of daily living. Given the state of the home as depicted by the video recordings, it appears that everyone kept to their own private bedrooms as the remainder of the home was filled with items relating to Ms. Savage’s garment business and Ms. Savage’s mother’s home – thus resembling an unliveable hoarder’s home. The evidence firmly established that Mr. Parker was mostly self-reliant; however, when Mr. Parker required assistance, such as in 2014 when he injured himself, assistance was provided by his daughters, and occasionally his son.

[115] The evidence established that Mr. Parker solely paid for the Broadgreen home, gifted a ½ interest in the home to Ms. Savage for no consideration and advanced at least $300,000 to Ms. Savage to assist with her business.

[116] Ms. Savage ran her business out of the Broadgreen home, moved her daughter, her daughter’s boyfriend, and her mother into the home (none of whom paid rent), and filled the home with the personal effects of herself, her daughter, her mother, Victoria Anne Heirlooms’ equipment and inventory, and cats.

[117] The evidence established that the majority of Mr. Parker’s emotional, physical, and financial support was provided by his adult children.

[118] In his later years when Mr. Parker’s eyesight failed, the evidence established that it was his children who provided transportation and purchased any personal items that he required. Ms. Savage took over his bank account and freely utilized his pension income such that at the end of each month Mr. Parker had no funds left in his account for anything, including groceries, which were purchased for him by his children.

[119] For the foregoing reasons, I dismiss Ms. Savage’s claim for unjust enrichment.

Partition and Sale

[120] The sole question remaining to be determined is whether the Estate is entitled to an order for vacant possession and for an order directing the partition and sale of the Broadgreen home, and if so, on what terms.

[121] Section 3(1) of the Partition Act, R.S.O. 1990, c.P.4 provides that any person interested in land in Ontario, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

[122] The interests in land subject to partition or sale are identified in section 2 of the Act and include interests of tenants in common.

[123] In an application for partition and sale, there is a presumption in favour of partition. The presumption can be rebutted when partition is not available as an option, or when it can be demonstrated that a sale is more advantageous to the parties: see Garfella Apartments Inc. v. Chouduri, 2010 ONSC 3413, 102 OR (3d) 624, at para.11.

[124] In Brienza v Brienza, 2014 ONSC 6942, [2014] O.J. No. 5742, Perell, J. provided an instructive summary of the law with respect to partition and sale applications at paras. 22- 25:

[22] Section 2 of the Partition Act states that a joint tenant or tenant in common may be compelled to make or suffer partition or sale. The general principles to determine when partition and sale should be granted were laid down in Davis v. Davis, [1954] O.R. 23 (C.A.), where the Court of Appeal stated:

There continues to be prima facie right of a joint tenant to partition or sale of lands. There is a corresponding obligation on a joint tenant to permit partition or sale, and finally the Court should compel such partition or sale if no sufficient reason appears why such an order should not be made.

[23] The onus is on the party resisting partition or sale to demonstrate sufficient reasons for refusal: Davis v. Davis, supra; Silva v. Bettencourt, [2002] O.J. No. 1878 (S.C.J.).

[24] In cases after Davis, the Act has been interpreted to mean that the court has a very limited discretion to refuse an application for partition or sale: Silva v. Silva, [1990] O.J. No. 2183, supra; Hay v. Gooderham (1979), 24 O.R. (2d) 701 (Div. Ct.); Garfella Apartments Inc. v. Chouduri 2010 ONSC 3413, [2010] O.J. No. 2900 (Div. Ct.).

[25] Only in exceptional circumstances will a joint tenant or tenant in common be denied his or her request that the property be partitioned or sold. The court's discretion to refuse partition and sale is narrow, and there must be malicious, vexatious or oppressive conduct to justify the refusal to grant partition and sale: Silva v. Silva, supra; Osborne v. Myette, [2004] O.J. No. 3383 (S.C.J.); Latcham v. Latcham, [2002] O.J. No. 2126 (C.A.), affg. [2001] O.J. No. 5291 (Div. Ct.); Fellows v. Lunkenheimer (1998), 21 R.P.R. (3d) 142 (Ont. Gen. Div.); Kalita v. Freskiw Estate, [1998] O.J. No. 5180 (Gen. Div.); Jakubiszyn v. Tekielak, [1991] O.J. No. 2362 (Gen. Div.); Garfella Apartments Inc. v. Chouduri, supra.

[125] In determining whether a party has engaged in malicious, vexatious, or oppressive conduct, the court is limited to a review of conduct related to the application for partition and sale. As noted by Ferrier, J. in Akman v. Burshtein, [2009] O.J. No. 1499, at para. 38:

[38] Any allegation of malicious, vexatious, or oppressive conduct should relate to the partition and sale issue itself. Specifically, it is necessary to look at the reasonableness of the positions taken by the parties as it relates to the application for partition and sale.

[126] In Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2005), 75 OR (3d) 478, at para. 1, the Court of Appeal confirmed that the scope of the court’s discretion to refuse an applicant’s request for a remedy pursuant to the Act was limited to circumstances of, “malice, oppression and vexatious intent” but went on to express the following caveat at para. 2:

[2] In our view, "oppression" properly includes hardship, and a judge can refuse partition and sale because hardship to the co-tenant resisting the application would be of such a nature as to amount to oppression.

[127] The issue of hardship amounting to oppression was considered by the court in Garfella Apartments Inc., both at the trial and appeal levels. In that case, the parties were tenants in common of an apartment building which had been divided into 147 percentage interests. The applicant acquired 124 of those interests and brought an application for the sale of the building after it unsuccessfully attempted to acquire the remaining interests. The lower court’s decision to deny the application was upheld by the Divisional Court, which found the following at para. 61:

[61] …it is relevant to consider the relative hardship between the parties, as was done by the application judge. Although for Garfella this is a purely commercial transaction, it is not that for many of the respondents. This is their home and losing it will cause considerable hardship. Garfella was fully aware of the interests of these respondents when it purchased its interest in the building…That does not mean that determining the degree of relative hardship between the parties is sufficient to satisfy the Greenbanktree test for oppression; there must be actual hardship to the respondent amounting to oppression to warrant refusing a remedy. However, relative hardship is nevertheless a relevant factor in considering unfairness as a component of oppression.

[128] The weight to be given to relative hardship in the court’s exercise of discretion was also considered in Re Yale and MacMaster (1974), 3 OR (2d) 547. In that case, the court considered an application by a trustee in bankruptcy seeking partition and sale of a residence jointly owned and occupied by the bankrupt’s former wife and children. In exercising his discretion to deny the trustee’s application, Galligan J. noted:

Having come to the conclusion that a consideration of relative hardship is a relevant consideration in determining how a Court ought to exercise the discretion conferred upon it by the Partition Act, I feel obliged to consider it in this case…I think the weight that such a factor may have in each case will depend upon the circumstances of how, when and why the property was purchased, the relationship of the parties or their predecessors in title at the time the property was purchased and the circumstances which have resulted directly from the relationship of the parties which existed at that time…

[129] The mere act of bringing an application for partition and sale does not amount to bad faith, nor does it constitute oppressive or vexatious conduct. Likewise, mere disappointment does not rise to the level of hardship; the party seeking to oppose the sale must provide the court with objective evidence that hardship would arise if the sale were permitted to proceed: see Brienza, paras. 31-33; 1312733 Ontario Inc. v. Simone, 2019 ONSC 4420, 10 R.P.R. (6th) 320, at para. 46; Re MacDonald and MacDonald, 14 OR (2d) 249.

Determination of the Issue of Partition and Sale

[130] In the present case, the Estate has a prima facie right to require the sale of the property and I am of the view that a sale is required to be ordered.

[131] There has been no malicious, vexatious, or oppressive conduct on behalf of the Estate. To the contrary, the Estate has provided time, distance, and financial assistance to Ms. Savage, and but for that assistance, the home would already have been sold by CIBC by power of sale.

[132] As for any concerns of hardship, Ms. Savage was provided with an opportunity to purchase the Estate’s ½ interest and was unable to complete the purchase. She had advised the court that she will not qualify for a mortgage. In response to Ms. Savage’s claims of insolvency, at the conclusion of the trial, the Estate presented a suggested plan for disengagement that generously addresses any concerns regarding hardship that would otherwise befall Ms. Savage upon sale of the home. I find that the proposed plan by the Estate is compelling, and in the best interests of both co-owners of the property.

[133] In the circumstances, the sale of the Broadgreen home is hereby ordered, in accordance with the plan proposed by the Estate, as follows:

1. The Court will issue a Writ of Possession not to be enforced earlier than March 31, 2024, and the Defendant and all tenants shall voluntarily vacate the premises by March 31, 2024. There will be an order for sale initially based on Ms. Savage and the Estate each holding a 50% tenant in common position.
2. The Estate will advance, by way of a loan, against the equity of Carol Savage to be repaid on the closing of the sale transaction of the property up to $10,000.00 to pay for first and last month’s rent, moving expenses for Ms. Savage, and rent in general which amount will be payable directly to a landlord upon presentation of a lease reflecting Ms. Savage’s new living arrangements and charges for moving her belongings to her new premises, so as to facilitate locating to new premises to live prior to or by March 31, 2024.
3. Upon Ms. Savage vacating the premises, the Estate will advance as a further loan against Ms. Savage’s equity in the property to be paid out of the sale proceeds, a further $5,000.00 for rent and living expenses during the sale process to facilitate Ms. Savage supporting herself to and until the sale, and disposition of the sale proceeds from the home.
4. Ms. Savage will immediately begin to eliminate and clean out the property of all unnecessary items that she does not intend to take with her by way of junk disposal and may submit to the Estate any invoices for these costs from reputable companies and they will be paid upon proof of payment, or the Estate will pay those companies directly in regard to removal of junk and property from the premises. Any payments made under this heading will also be repaid from the sale proceeds.
5. As soon as the property is vacant and Ms. Savage and any tenant (including Sherry) have vacated the premises, the Estate shall be notified, provided the same is not later than March 31, 2024, and will be entitled to move in and dispose of and discard any and all property left on site and not taken by Ms. Savage, and to begin the clean out and prepare the property for sale, and shall be entitled to be reimbursed in a priority claim from the sale, all reasonable costs incurred in preparing the property for sale from the net proceeds of sale. Further, all monies outstanding due and owing under the mortgage, that includes the original CIBC mortgage plus property taxes and the costs of dealing with CIBC and securing a transfer of the mortgage, and these amounts shall be deducted in priority from the sale proceeds prior to any distribution to the property owners being the Estate and Ms. Savage.
6. As detailed earlier in these Reasons for Decision, I find that the HST and Retail Sales Tax liens are the responsibility of Carol Savage (solely) and these amounts shall be paid out of Carol Savage’s share of the equity of the net proceeds of sale in order to secure the discharge of the tax lien and in addition, the costs payable to the Estate determined to be owed in the action as well as the costs awarded by the Honourable Justice S. Bale shall be paid out of Carol Savage’s proceeds of sale. The payment of all 2023 property taxes and utilities necessary to be paid to complete the sale (adjustments on closing) shall be paid from Carol Savage’s proceeds of sale.
7. To the extent that the sale process is delayed through no fault of the Defendant Carol Savage, and the property is listed and the sale of the property is being actively and effectively pursued, if the property is not sold and proceeds of sale not generated by June 1, 2024, the Estate will advance as a loan to Carol Savage as against her interest in the property, a further sum of $5,000 for assistance to her supporting herself to and until the proceeds of sale are available.

[134] In addition to these terms, I add the following:

8. The Estate shall be entitled to solely choose and communicate with any realtor to affect the sale of the Broadgreen home and the signature of the co-owner, Carol Savage, is hereby dispensed with on any realtor contract or listing agreement.
9. The Estate shall be authorized to solely execute any documents necessary to payout any mortgages, liens, or encumbrances, and the signature of the co-owner Carol Savage is hereby dispensed with on any of these documents.
10. The Estate shall be authorized to solely review, refuse, and/or accept any reasonable offer to purchase the property and the signature or agreement of the co-owner, Carol Savage, is hereby dispensed with respect to any offers to purchase, sign-backs, or amendments, including the transfer deed of land selling the property.
11. The Estate shall keep Ms. Savage informed as to the status of the sale of the home and shall provide monthly updates by email. Additionally, the Estate shall advise Ms. Savage of any offers to purchase received (whether accepted or rejected) and any sign-backs to any offers, which information shall be included in the monthly report. When the property is sold, the Estate will advise Ms. Savage in writing of the details of the sale including the sale price, the closing date, and whether any conditions attached to the sale. This information shall be provided within 48 hours of waiver of any conditions relating to the sale.

IV. CONCLUDING REMARKS AND COSTS

[135] I have rarely seen an estate dispute of this nature handled with such decorum.

[136] Despite the emotionally charged issues and the opportunities that a trial presents to disparage the opposition, each of Mr. Parker’s children spoke lovingly of their father, and respectfully about Ms. Savage. In kind, Ms. Savage spoke respectfully of Mr. Parker’s relationship with his children and did not pursue allegations of fraud or undue influence.

[137] Having said this, clearly Ms. Savage had no intention of leaving the Broadgreen home unless forced. The trial was necessitated by Ms. Savage’s refusal to accept Mr. Parker’s Will and his decision to leave ½ of the Broadgreen home to his children. Ms. Savage is the losing party, and while that would ordinarily lead to a cost decision against her, the facts and circumstances lead me to conclude that the Estate should receive their costs, on a complete indemnity basis, from the “fund in dispute” being the net proceeds of sale of the Broadgreen home. Ms. Savage will receive no costs.

[138] The Estate filed a Costs Outline seeking costs on a full indemnity basis at $99,316.68. The Estate is awarded this amount to be paid out of the net proceeds of sale of the Broadgreen home prior to distribution.

[139] The Estate shall attend to the taking out of the Judgment in accordance with these Reasons for Decision and the approval of the Defendant Ms. Savage be and is hereby dispensed with. The Judgment may be forwarded directly to my judicial assistant for signature to expedite issuance and entry.

Justice S. J. Woodley Released: January 2, 2024